St. Paul Mercury Ins. Co. v. Circuit Court of Craighead County, 348 Ark. 197, 205, 73 S.W.3d 584, 589 (2002) (citing Murrell v. Springdale Mem'l Hosp., 330 Ark. 121, 952 S.W.2d 153 (1997)). See alsoRhuland v. Fahr, 356 Ark. 382, 389, 155 S.W.3d 2, 6 (2004) (explaining that the wrongful-death statute does not create an individual right of any beneficiary to bring suit). Because individual heirs have no standing, when a complaint is filed by fewer than all of the decedent's heirs at law, the complaint is a nullity.
The complaint was amended for a fourth time on November 28, 2007, to reflect that James A. and Carol Sue Bryant were owners of the property as trustees of the Bryant Family Revocable Trust. The fourth amended complaint also alleged for the first time that piles of deadfall and timber slash remaining on their land constituted a continuing trespass and that Appellees had erected a fence along the southern and western edge of the Bryants' property, which was alleged to be an encroachment and continuing trespass. At the hearing on the Treadwells' motion for summary judgment, Appellees stated that their motion was based on the fact that the plaintiffs named in the original complaint filed September 13, 2002, James A. and Carol Sue Bryant, did not own the property in question because it had been placed in the family trust in April 2001. Appellees cited the trial court to Rhuland v. Fahr, 356 Ark. 382, 155 S.W.3d 2 (2004), and argued that the statute of limitations had run in the present case because, according to Rhuland, whenever an amendment to a complaint substitutes a new plaintiff, such amendment is a new cause of action and does not relate back to the original complaint. Appellants responded that Rhuland should not be applied to the present case for trespass and encroachment because it was a wrongful-death case.
We held that because the amended complaint in that case operated to substitute out "all the plaintiffs, and put in their place entirely new plaintiffs, it was not an amendment, but rather was a new suit." Id. at 206, 73 S.W.3d at 589; see also Rhuland v. Fahr, 356 Ark. 382, 155 S.W.3d 2 (2004), Ark-Homa Foods, Inc. v. Ward, 251 Ark. 662, 664, 473 S.W.2d 910, 911 (1971) (noting that "[i]t is well settled that where an action is brought in the name of a non-existing plaintiff, an amendment of complaint by substituting the proper party to the action as plaintiff will be regarded as the institution of a new action as regards the statute of limitations"). [1,2] In the case at hand, it is clear that under § 16-62-102(b), Ms. Hackelton did not have standing to sue when she filed the original complaint on October 2, 1997, because she had not yet been appointed the administrator of Mrs. Ray's estate and was not the sole heir.
And, because those timely filed petitions were not pending in September, 2019, the fourth petition filed then could not relate back to them. See, e.g., Rhuland v. Fahr, 356 Ark. 382, 390-91, 155 S.W.3d 2, 8 (2004) (explaining that there must be existing pleadings to amend before relation back can occur); see also, e.g., Arkansas Rule of Criminal Procedure 37.2(e) (2019) (authorizing amendment of a petition with leave of court "[b]efore the court acts upon" it) (emphasis added).
The defendants argued that despite the liberal amendment policy of Fed.R.Civ.P. 15(a), the district court should deny the motion. Because the original complaint did not comply with § 16-62-102(b), the argument ran, it was rendered a "nullity" under Arkansas law, see Rhuland v. Fahr, 356 Ark. 382, 390-92, 155 S.W.3d 2, 8-9 (2004), and thus there was no complaint to amend. The district court granted the defendants' motion for judgment on the pleadings and denied Ms. Williams's motion to amend.
The State of Arkansas has held that, while “the wrongful-death statute is a remedial statute that should be interpreted liberally with a view toward accomplishing its purposes, ” “the action is one that is of statutory creation, and is in derogation of or at variance with the common law, and therefore, [is to be construed] strictly. . . Nothing is to be taken as intended that is not clearly expressed.” Rhuland v. Fahr, 155 S.W.3d 2, 6-7 (Ark. 2004). The Arkansas Supreme Court has acknowledged that, when used in the wrongful death statute, the word “person” is intended to include a viable fetus.
In some instances, Arkansas appellate courts have ruled complaints with certain defects should be treated as never having been filed; Rule 15(c) is inapplicable to these null complaints. See e.g. Preston v. University of Arkansas for Medical Sciences, 354 Ark. 666, 128 S.W.3d 430 (2003) (holding complaint alleging medical malpractice filed in Arkansas court by out-of-state attorneys who were not admitted pro hac vice in Arkansas a nullity); St. Paul Mercury Ins. Co., 348 Ark. at 204-7, 73 S.W.3d at 588-90, (holding pro se complaint alleging medical malpractice filed by deceased's parents and other heirs-at-law a nullity because complaint did not strictly comply with Arkansas survival and wrongful death statutes as to proper plaintiffs, Ark. Code Ann. §§ 16-62-101, 102); see also Rhuland v. Fahr, 356 Ark. 382, 155 S.W.3d 2 (2004); Estate of Byrd v. Tiner, 81 Ark.App. 366, 101 S.W.3d 887 (Ark.App. 2003). In these cases, the original complaints were filed prior to the statute of limitations running, but the proposed amended complaints were not filed or requested to be filed until after the statute of limitations had run.
The record also reflects that Courtyard Gardens deposed Kenny and his wife, Oleater Quarles, on October 9, 2014. It also took the deposition of Dr. Ferdinand Roda, Bennie Jean's treating physician, on December 22, 2014.On January 30, 2015, the day scheduled for mediation, Courtyard Gardens filed the motion for summary judgment that is the subject of this appeal. Citing Rhuland v. Fahr, 356 Ark. 382, 155 S.W.3d 2 (2004), Courtyard Gardens asserted that the complaint and the amended complaint filed by Kenny under the power of attorney given to him by Bennie Jean were ities because the power of attorney executed in June 2010 was invalid. According to Courtyard Gardens, the power of attorney was invalid for two reasons.
In reviewing a court's decision on a motion to dismiss, we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. Dollarway Patrons for Better Schs. v. Morehead, 2010 Ark. 133, 361 S.W.3d 274; Rhuland v. Fahr, 356 Ark. 382, 155 S.W.3d 2 (2004). In testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and all pleadings are to be liberally construed.
In reviewing a court's decision on a motion to dismiss, we treat the facts alleged in the complaint as true and view them in a light most favorable to the plaintiff. Rhuland v. Fahr, 356 Ark. 382, 155 S.W.3d 2 (2004). In testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and all pleadings are to be liberally construed.